In a landmark victory, CJA litigated the first case to consider the “common law immunity” of foreign officials to a decision that both denies absolute deference to the executive branch and denies immunity for human rights abuses like torture and extrajudicial killing.

On November 2, 2012, the U.S. Court of Appeals for the Fourth Circuit once again sided with our clients against former Somali General Mohamed Ali Samantar. The long and thoughtful opinion rejects absolute deference to the executive branch in determining immunity for “official acts.” Even more powerfully, the opinion holds that egregious human rights abuses cannot be considered “official acts” shielded by immunity: “Under international and domestic law, officials from other countries are not entitled to foreign official immunity for jus cogens violations, even if the acts were performed in the defendant’s official capacity.” In other words, immunity for “official acts” cannot extend to torture, extrajudicial killing, or any other universally recognized human rights violation because no foreign official has the authority to commit these international crimes. The Fourth Circuit’s decision marks a crucial step forward in the fight against impunity.

On August 28, 2012, U.S. District Court Judge Leonie Brinkema awarded $21 million in compensatory and punitive damages against former Somali General Mohamed Ali Samantar. In a hearing before Judge Brinkema on February 23, 2012, General Samantar had accepted liability and responsibility for damages for torture, extrajudicial killing, war crimes and other human rights abuses committed against the civilian population of Somalia during the brutal Siad Barre regime, the military dictatorship that ruled that country from 1969 to 1991.

This judgment marks the first time that anyone has been held to account anywhere in the world for atrocities committed by General Samantar and the military dictatorship that ruled Somalia for over 20 years.

During the 1980s, General Samantar presided over an increasingly repressive military that committed horrific atrocities with particular harshness in the northern part of Somalia, and particularly against people who were of Isaaq heritage. In response to this brutality, a pro-democracy resistance movement emerged, calling itself the Somali National Movement, or the SNM. The SNM drew its strength from the Issaq. Though the SNM also committed human rights violations, the overwhelming number of atrocities were committed by Somali government soldiers.

As the SNM’s strength grew, the Somalia Armed Forces retaliated with increasing brutality against unarmed civilians. The Somali Armed Forces killed and looted livestock, blew up water reservoirs, destroyed homes, and tortured, imprisoned and summarily executed civilians accused of supporting the SNM, including businessmen, teachers, high school students and nomads simply tending their herds.

During this time, defendant Mohamed Ali Samantar served as Vice President and Minister of Defense (1980-1986) and Prime Minister of Somalia (1987-1990). In June 1988, the Somali government's brutal counterinsurgency war against the SNM culminated in an indiscriminate aerial and ground assault on Hargeisa, the nation's second largest city. The attack struck civilian neighborhoods the hardest and leveled most of the city; over 5,000 residents were killed. In an interview with the BBC in 1989, Samantar admitted to giving the final order approving these operations. Listen to that interview here or read the transcript here.

The plaintiffs are survivors of these widespread human rights violations:

In the early 1980s, Bashe Abdi Yousuf was a young businessman in the northern Somali city of Hargeisa. He volunteered his time and donated money to improve education and health care. In November 1981, he was abducted by government agents, accused of being part of a subversive organization, taken to a detention center, and tortured repeatedly over a period of several months. Among other things, Yousuf was subjected to electroshock treatment and a stress-position torture called “the MIG,” in which Yousuf ’s hands and feet were tightly bound together behind his back so that his body was pulled into a U-shape with his limbs high in the air. The torturers then placed a heavy rock onto his back, producing excruciating pain and causing the ropes to cut deeply into Yousuf’s arms and legs. Yousuf was interrogated about his friends, alleged to be the members of his “organization” and told that the torture would end if he falsely confessed to anti-government crimes. Over the course of several months, Yousuf was interrogated numerous times and subjected to torture including water-boarding. Eventually convicted of membership in an illegal organization in a trial that lacked basic due process, Yousuf spent the next six years of his life in prison, almost entirely in solitary confinement. Fleeing Somalia after his release, Yousuf arrived in the United States in 1991, and later became a naturalized United States citizen.

In 1984, Buralle Salah Mahamoud and his brothers were arbitrarily detained by Somali government forces and convicted without due process of collaborating with the Somaliland National Movement. Sentenced to death, he managed to escape with his life, but his brothers were killed in a mass execution with approximately 40 other Isaaq men.

In June 1988, during the Somali Armed Forces’ attack on the city of Hargeisa, a group of government soldiers entered Aziz Mohamed Deria’s childhood home and abducted his father, brother, and cousin at gunpoint. The soldiers threatened that they going to kill their detainees. After their disappearance at the hands of government forces, Mr. Deria and his family never saw them again. Mr. Deria later heard from released detainees that the three men were executed.

In June 1988, Ahmed Jama Gulaid, then a non-commissioned officer in the Somali National Army, was arrested along with other Isaaq soldiers and transported to an execution site. John Doe II was shot by a firing squad in a mass execution and dumped in a mass grave. His wounds were not fatal, and he managed to crawl out from beneath a pile of bodies and escape to safety.

Complaint

CJA filed the complaint with the U.S. District Court for the Eastern District of Virginia on November 10, 2004. Samantar—who now lives in Fairfax, Virginia—was served at his home. Brought under the ATS and the TVPA, the suit alleges that Samantar had command responsibility for extrajudicial killing; arbitrary detention; torture and cruel, inhuman or degrading treatment; crimes against humanity and war crimes carried out by his subordinates during this period. In response, Samantar claimed head-of-state immunity.

Solicitation of the State Department’s Opinion

In January 2005 the court stayed the proceedings in order to give the State Department an opportunity to weigh in on the question of immunity. The court requested that Samantar provide regular updates on the State Department’s position. For two years, Samantar reported each month that the request was “under consideration.”

State Department Refuses to Comply with Subpoena

Despite the stay, District Court Judge Leonie Brinkema allowed the plaintiffs to subpoena documents from the U.S. Government. CJA served a subpoena on the State Department that requested documents relating to human rights and military issues in Somalia. The Bush administration objected to all attempts to enforce the subpoena, arguing that the government is not bound by Federal Rule of Civil Procedure 45, which governs the enforcement of subpoenas, because it is not a "person" under the rule. CJA filed a motion to compel the State Department to comply with the subpoena, but the District Court for the District of Columbia agreed with the U.S. government position, holding that the subpoena was invalid.

Appeal of Lower Court’s Subpoena Ruling

On appeal, the U.S. Court of Appeals for the D.C. Circuit overturned the District Court’s decision on June 15, 2006. The appeals Court held that the U.S. Government is required to comply with subpoenas for documents in private lawsuits, even when the Government is not directly involved in the case. The appeals Court sent the case back to the District Court to enforce the subpoena against the State Department.

Case Dismissed on Statutory Immunity Grounds

After receiving no Statement of Interest from the State Department, the Court reinstated the case on January 22, 2007. Shortly thereafter, Samantar filed another motion to dismiss, arguing that he was shielded from civil liability by the Foreign Sovereign Immunities Act (FSIA). On April 27, 2007, the District Court granted Samantar’s motion. The Court held that the FSIA provides immunity from civil lawsuits to foreign states and to their agencies and instrumentalities. Judge Brinkema wrote that, although the FSIA makes no direct mention of individual officials, individuals acting in an official capacity should be treated as an agency or instrumentality and should likewise benefit from immunity. Thus, the plaintiffs were barred from bringing suit against Samantar.

Appeal to the Fourth Circuit

The plaintiffs appealed the District Court’s ruling to the Fourth Circuit Court of Appeals, arguing that:

the FSIA does not apply to individual officials, only to foreign states or their agencies or instrumentalities;

even if the FSIA did apply to individuals, such persons would only be immune if they were agents or officials at the time of the filing of the suit;

in any case, FSIA immunity cannot possibly attach to illegal acts such as torture, which are outside the scope of authority of foreign officials;

furthermore, at the time of the filing, there no longer was a “state of Somalia” that could qualify as a foreign state under the FSIA.

Two amicus briefs were filed in support of the plaintiffs' appeal. One brief was prepared by the International Human Rights Clinic at Harvard Law School and submitted on behalf of Dolly Filártiga, Sister Dianna Ortiz, and a diverse group of religious groups, human rights organizations, and non-profits providing health and social services to torture survivors. A second brief, focusing on congressional intent, was prepared by the Human rights Clinic at the University of Virginia School of Law and was signed by UVA professors and Congresswoman Sheila Jackson Lee.

Fourth Circuit Overturns the Dismissal

On January 8, 2009, the Fourth Circuit reinstated the case against Samantar. The Fourth Circuit panel held that (1) the FSIA does not confer jurisdictional immunity on individual foreign government officials and (2) even if the FSIA did apply to individuals, it would only apply if they were officials at the time of the filing of
the suit. The Fourth Circuit remanded the case to the District Court for further proceedings. Samantar petitioned for rehearing en banc by the entire Fourth Circuit Court of Appeals. However, on February 2, 2009, the Fourth Circuit denied Samantar's petition.

Supreme Court Grants Cert Petition

In June 2009, Samantar filed a petition for writ of certiorari asking the United States Supreme Court to review the Fourth Circuit's decision rejecting his claim of immunity under the FSIA. On September 30, 2009, the U.S. Supreme Court agreed to review the Fourth Circuit's decision. The key issues under review will be (1) whether the immunity from civil suits applicable to foreign states extends to individual foreign officials and (2) if so, whether this immunity extends to former officials, like Samantar, who no longer hold office at the time of suit.

Briefing and Oral Arguments

On November 39, 2009, Samantar filed his merits brief. On January
20, CJA filed a brief
for the Respondents. On January 27, 2010 a broad array of
supporters filed amicus curiae briefs in support of respondents,
including the U.S. government, Members of Congress, former U.S.
diplomats, former U.S. military professionals, Holocaust survivors and
groups doing anti-genocide work, human rights and religious
organizations, experts on Somali history, the Foreign Minister of
Somaliland, and highly respected law professors.

Oral argument was
heard on March 3, 2010, with U.S. based clients, Aziz Deria and Bashe Yousuf, in attendance.

Samantar chiefly contended that because a state acts through its individual officials, those officials should enjoy the same immunity that the FSIA provides for the state itself. A suit against an official, he contended, is merely a suit against the state under a different label.

In response, CJA and Supreme Court counsel Patricia Millet argued that the Fourth Circuit correctly interpreted the FSIA to apply only to states and their agencies and instrumentalities--legal categories which, under standard rules of construction, do not include individual officials. Any possible immunities for individual officials would be governed by common law principles, which were not superseded by the FSIA. Moreover, even if Samantar were correct that a suit against the official is a suit against state, Samantar would no longer be shielded since he, as a former official of a defunct political entity, is no longer ‘the state.'

And crucially, immunity cannot shield those responsible for torture and extrajudicial killing, because under international law, no official has the lawful authority to violate these universal human rights norms. Torture and crimes against humanity are not privileged official acts, meriting the protection of the courts.

Supreme Court Rules Unanimously Against Immunity for Samantar

By a 9-0 decision, the U.S. Supreme Court affirmed the Fourth Circuit Court of Appeal's decision that Samantar is not shielded from suit by the FSIA, holding that the FSIA does not immunize individual officials. The Court did note that common law immunities may still apply and remanded the case for proceedings in the U.S. District Court for the Eastern District of Virginia.

CJA and our clients would like to thank the many people and organizations who helped make this victory a reality. In particular, we would also like to thank our Supreme Court counsel Patricia Millett of Akin Gump Strauss Hauer & Feld, LLP and co-counsel Cooley Godward & Kronish, LLP.

Further Proceedings in the U.S. District Court for the Eastern District of Virginia

With the case remanded to the District Court, Samantar filed a motion to dismiss the complaint in November 2010, arguing that he was entitled to common law immunity and head of state immunity. He also argued that the case was barred by the political question doctrine, the statute of limitations and that the plaintiffs had not stated enough facts in the complaint to support the claims against him. We opposed the motion to dismiss and the Samantar filed a reply. The court initially set a hearing date of January 14, 2011.

On January 6, 2011, the U.S., on behalf of the State Department, filed a Notice of Potential Participation stating that it was considering the immunity issue and asking the court to give it until January 31 to render a decision. The court agreed to continue the case to give the government time to state its position. On February 14, 2011, the U.S. filed a Statement of Interest stating that Samantar was not entitled to immunity in the case. The filing is significant because the U.S. rarely intervenes in litigation where it is not a party, and it is extremely uncommon for the government to intervene to state that a defendant is not entitled to immunity. Based on the State Department’s filing, the very next day, the court ruled that the Defendant’s common law immunity claim is not viable.

Following oral argument on the remaining issues in the motion to dismiss on April 1, 2011, the Court denied Samantar's motion to dismiss without prejudice and ordered full discovery. Significantly, this means that Plaintiffs will be able to take Samantar's deposition and ask him why he directed a systematic attack on unarmed Somali civilians, including torture, rape and mass executions of countless victims. The Court also denied Samantar's motion for reconsideration of his common law immunity claim. On April 29, 2011, Samantar filed a notice of interlocutory
appeal to the Fourth Circuit of his claim of common law immunity. Judge Brinkema issued a scheduling order on May 3 and denied Samantar's motion to stay the scheduling order on May 18, certifying his interlocutory appeal to the Fourth Circuit as frivolous.

Defendant filed a motion for summary judgment on November 21, 2011 which the court denied in December.

Trial was scheduled to begin February 21, 2012. After filing and losing two more motions to stay the proceedings (one at the trial court level and one at the 4th Circuit), on the evening of February 19, Samantar filed for bankruptcy, which by operation of statute deprived the trial court of jurisdiction and imposed an immediate stay of the proceedings. Attorneys from CJA and Akin Gump flew into action, filing and winning an emergency motion to lift that stay on February 21, and securing a new trial date of February 23.

On the morning of February 23, Samantar personally appeared in court to enter his default, conceding both liability and damages. Significantly, Judge Brinkema questioned Samantar directly regarding his entry of default on all of the claims against him. Read the transcript here. After finding Samantar liable for the plaintiffs’ injuries, Judge Brinkema proceeded with a hearing on damages. CJA and Akin Gump attorneys presented the testimony of all our plaintiffs and several other key witnesses, as well as documentary evidence in support of compensatory and punitive damages. Read transcripts of the damages trial here [vol. 1] and here [vol. 2]. Read the Court's judgment and $21 million damages award here.

Fourth Circuit Denies Immunity Again

After losing his bid for immunity under the Foreign Sovereign Immunities Act at the U.S. Supreme Court, Samantar had filed and lost another motion to dismiss the case, arguing that he was entitled to common law and head of state immunity. Samantar appealed this decision to the Fourth Circuit, but after the U.S. Department of State yet again weighed in on the Plaintiffs’ side, the trial court certified the appeal as frivolous, allowing the case to move forward to trial in February 2012. Oral argument before the Fourth Circuit was heard May 16, 2012.

On November 2, 2012, the U.S. Court of Appeals for the Fourth Circuit once again sided with our clients against former Somali General Mohamed Ali Samantar. In this landmark victory, CJA litigated the first case to consider the “common law immunity” of foreign officials to a decision that both denies absolute deference to the executive branch and denies immunity for human rights abuses like torture and extrajudicial killing. The Fourth Circuit’s decision marks a crucial step forward in the fight against impunity.

Organized collection of forensic evidence of human rights violations is an important step toward discovering the truth, achieving justice, and ensuring that such crimes are not repeated. Incontrovertible physical evidence of such abuses is important both for the judicial process and for the survivors, as it provides the world with an objective account and acknowledgement of the abuses suffered.

Senator Patrick Leahy was the lead Democratic sponsor of the Torture Victim Protection Act (TVPA), which was enacted in 1991 to provide a federal cause of action against any individual who subjects any person to torture or extrajudicial killing. Leahy has spoken in support of upholding this important human rights law.

In a landmark decision, the 4th Circuit Court of Appeals has denied Samantar's appeal in the first case to consider the "common law immunity" of foreign officials. The decision denies immunity for human rights abuses like torture and extrajudicial killing and denies absolute deference to the executive branch.

On August 28, 2012, U.S. Federal Judge Leonie Brinkema awarded $21 million in compensatory and punitive damages against former Somali General Mohamed Ali Samantar. This judgment marks the first time that any Somali government official has been held accountable for the atrocities perpetrated under the Siad Barre regime.

Former Somali General Mohamad Ali Samantar accepted liability before U.S. federal judge Leonie Brinkema for torture, extrajudicial killing, war crimes and other human rights abuses committed against the civilian population of Somalia during the brutal Siad Barre regime. This draws to an end a seven year quest in the U.S. courts for justice for those harmed by General Samantar and troops under his command.

Our clients are five survivors of the widespread and systematic campaign of human rights violations carried out under General Mohamed Ali Samantar's tenure in office. Several of them have been forced to bring claims anonymously for security fears.

General Mohamed Ali Samantar served from January 1980 to December 1986 as Vice President and Minister of Defense of the Democratic Republic of Somalia. In January 1987, he was appointed Prime Minister of Somalia by the Somali dictator, General Siad Barre. Samantar held this position until the collapse of the Barre regime in September 1990.

A moving reportage on the legacy of Barre-era war crimes in Somaliland: “The President told us there was a war,” Abokor said, “that the cities we had known were now cities of ghosts, that our people were refugees. He told us it was our fault.”